How to Study Danish Judges Ole Hammerslev

Law works internally as a symbolic system, which means that it fosters its own specific way of thinking, perceiving and viewing social life and relations. Having said that, it is important to remember that law exists through, and is formed by, the people who act within it and in relation to it, ie, by the social agents who create law as a social field. And judges’ internal legal positions matter in terms of the legal power that they enjoy, which is why we also need to determine their legal position in relation to other positions in the field.

According to Bourdieu, and historical sociology in general, it is difficult to understand the social and legal position of judges in society without describing the emergence, transformation and continuities in their social and legal position during previous historical periods. Therefore, one of the aims of this chapter is to show how a historical perspective can be employed as part of the general method to conduct a study of this type. However, before developing a method suitable for this kind of examination, let me describe some characteristics of the field, and my own experiences when I began my study of judges in different courts in Denmark.

A. CHARACTERISTICS OF STUDYING A FIELD OF JUDGES

The advantage of studying judges is that a considerable amount of information exists regarding their background, career, prominence, independence, etc in the public domain. However, researchers who are new to this area may find it difficult to gain access to the legal field, and the field of judges in particular. In order to be granted access to the field and the wealth of information available in it one often needs personal contacts with agents who are willing to facilitate the researcher’s entry into the research area.

It is important, however, to break away from many of the established discourses, categories of visions and divisions in the field, as well as being reflexive about adopting and importing the problems and issues existing in the field into one’s main research questions. Many of these issues are social products that have emerged out of the previous struggles of, and competition between, the social actors over the stakes of the fields. Thus, they refer to social struggles and are not necessarily social scientific problems per se. Moreover, many of the understandings in the field may mask hidden structures, which can be of relevance to the researcher. From a Bourdieuian perspective, many of the categories, differentiations, and analytical objects existing in the field as mental structures are a part of a social struggle, where agents in the field try to strengthen their positions vis-à-vis other agents, and the field tries to strengthen its position vis-à-vis the field of power. This also relates to another difficulty, namely to the presentation of the research to agents in the field. As Bourdieu points out regarding different fields, resistance to accept alternative discourses and descriptions—objectivations—of issues are normally monopolised by the field itself: ‘Among the strategies used to resist scientific analysis, one of the most infallible consists in destroying the very purpose of the enterprise of objectivation by reducing the distanced description … to the status of “critique” in the everyday sense, if not to that of satire or gossip.’⁷

The problem for the sociology of law becomes significant because it studies a field, which is characterised by a claim to a monopoly of its own objectivation. The agents of the field project their partial observations, problems and concerns based on their and the field’s specific trajectories to real concerns and descriptions of the field, which hinders the interference of alternative objectivations.

Having said that, it is naturally legitimate to use pre-existing material for one’s own purposes. (What else can you do conducting historical research?) Ironically, it can be difficult to obtain access to this information, particularly if you are examining the power of judges and question their discourses and issues connected to their relation to the field of state power as well as the general field of power.

B. STUDYING THE HIDDEN STRUCTURES BEHIND THE FIELD OF JUDGES

When examining the social position of judges, it can be useful not to see them as a coherent unit and instead adopt a relational approach to get beyond the common sense understanding that judges are equal and only divided by means of internal legal structures. As Bourdieu explains the concept of profession is a dangerous concept, as it has:

… all appearance of neutrality in its favour … . To speak of ‘profession’ is to fasten on a true reality, onto a set of people who bear the same name (they are all ‘lawyers’ for instance); they are endowed with a roughly equivalent economic status and, more importantly, they are organized into ‘professional associations’ endowed with a code of ethics, collective bodies that define rules for admission, etc. ‘Profession’ is a folk concept which has been uncritically smuggled into scientific language and which imports into it a whole social unconscious. It is the social product of a historical work of construction of a group and of a representation of groups that has surreptitiously slipped into the science of this very group.⁸

This means that categories such as ‘profession’ or ‘lawyers’ are socially constructed and include both mental and social structures. They conceal differences and contradictions between the competing individuals including their social, economic, ethnic, sexual, etc status. But how is it possible to get beyond the type of categories like ‘professions’ and ‘lawyers’?

C. GRASPING THE RELATIONAL

In order to focus on the differences between legal professionals—and go beyond the existing discourses on the positions of judges—it is necessary to construct a field. In contrast to the notion of system (and much institutional theory), the notion of field has the advantage that it allows for the understanding that participants involved in the field do not form a coherent body, but are defined by their relation to other participants in the field. The Bourdieuian approach throws light on the relationships between different individual participants in the professional groups.⁹

Hence, the focus should be on differences within the field—be they sexual, ethnic, economic, educational, social relations, etc (forms of capital). A field is a net of objective relations between individuals or institutions that make up a structured system with its own activities. The field is defined as ‘a field of struggle’, that is a space in which the individuals struggle to gain monopoly on exerting legitimised violence in the field. Understood in a legal context this means that different (groups of) jurists struggle over the right to determine what law is.¹⁰ As specific legal modes are adopted in a legal habitus they seem obvious, and therefore law becomes a form of symbolic (hidden) power. Using the concept of ‘field’ for ‘a field of judges’ implies that the field is a subfield, a part of a larger legal field where the different agents struggle over the power of the law.¹¹

The differences in the forms and contents of capital of the individuals create the objective relations and determine their place in the field. It is by way of the differences between the individual’s possessions of capital that the power structures surface. The amount of power a person exerts in the field thus depends on the amount of capital the person possesses and on the person’s position in the field. Capital, be it economic, social, cultural or symbolic, is the property or form of power the individuals carry. It works as ‘admission fees’ to different fields and can improve the owner’s position in the field. Capital exists and functions only in relation to a field. Therefore, it is necessary to examine individuals’ possession of capital.